| 17
U.S. 518 4 L.Ed. 629,
4 Wheat. 518 (Cite
as: 17 U.S. 518) Supreme
Court of the United States TRUSTEES
OF DARTMOUTH COLLEGE v. WOODWARD. February
2, 1819 West
Headnotes Charities
k1 75k1 Corporations
k3 101k3 A
college whose charter declared that its purpose was to spread Christian knowledge
among the Indians, and establish the best means of education in a certain province,
for the benefit of the province, and whose trustees or governors were originally
named by the founder, and invested with the power of perpetuating themselves,
is an eleemosynary corporation. Charities
k1 75k1 Corporations
k3 101k3 Corporations
aggregate consist of those for public government, such as those for government
of a town, city or the like, and those for private charity subject to private
government of those who erect them. Charities
k1 75k1 Corporations
k3 101k3 The
fact that a corporation is established for the purpose of general charity, or
for education generally, does not per se make it a public corporation. Charities
k39 75k39 Colleges
and Universities k1 81k1 Hospitals
k1 204k1 Eleemosynary
corporations are such as are constituted for the perpetual distribution of the
free alms and bounty of the founder, in such manner as he has directed; and in
this class are ranked hospitals for the relief of poor and impotent persons, and
colleges for the promotion of learning and piety and the support of persons engaged
in literary pursuits. Charities
k39 75k39 Subscriptions
k10 367k10 Where
corporation for which charter was granted by crown was expressly created to distribute
in perpetuity charitable donations of private benefactors, and trustees by terms
of charter were to manage fund contributed, there was an implied contract, as
soon as donation was made to corporation, that the crown would not revoke or alter
charter or change its administration without consent of corporation, and there
was an implied contract between corporation and every benefactor that it would
administer contributions for objects stipulated in charter. Charities
k39 75k39 Colleges
and Universities k11 81k11 Dartmouth
College, under its charter, is a private, and not a public, corporation; and though
the charter was granted to the trustees, by the British crown, in 1769, it was
not dissolved by the Revolution. Charities
k39 75k39 Colleges
and Universities k3 81k3 The
stipulations of charter for college granted by British crown by which founder
agreed by implication that school should be removed from his estate to New Hampshire,
that he would relinquish all control over funds to be collected therefor, that
he would yield up management thereof to trustees, that he would devote his patronage
to college and that he would devote his future services thereto established consideration
for the grant. Charities
k39 75k39 Colleges
and Universities k1 81k1 Hospitals
k1 204k1 A
college is a private charity as well as a hospital, and both are eleemosynary. Charities
k39 75k39 Corporations
k3 101k3 That
a charity is public does not establish that the corporation administering it is
also public. Charities
k39 75k39 Corporations
k1.1(1) 101k1.1(1) The
mere act of incorporation will not change a charity from a private to a public
one. Charities
k39 75k39 Colleges
and Universities k1 81k1 Hospitals
k1 204k1 A
college or hospital founded by a private benefactor is a "private corporation"
although dedicated by its charter to general charity. Charities
k40 75k40 Constitutional
Law k125 92k125 Where
a private eleemosynary corporation is created by charter of the crown, it is subject
to no other control on part of the crown than what is expressly or implicitly
reserved by charter itself and, in absence of reservation for that purpose, crown
cannot, without consent of corporation, alter or amend charter or divest corporation
of any of its franchises, add to them, add to or diminish number of trustees remove
any of members, change or control administration of charity or compel corporation
to receive new charter. Charities
k40 75k40 Franchises
k13 183k13 An
eleemosynary corporation is subject to general law of the land and may forfeit
its corporate franchises by misuser or nonuser of them. Charities
k41.5 75k41.5 (Formerly
75k411/2) Colleges
and Universities k1 81k1 Where
purpose of contributions to chartered college was the propagation of the Christian
religion among the savages, fact that college was to be located in New Hampshire
and that New Hampshire would benefit from establishment thereof, did not place
beneficial interest therein in the people of New Hampshire so as to make it a
public corporation subject to control of state legislature. Charities
k42 75k42 Charities
k44 75k44 A
private charitable corporation is subject to control laws and visitation of its
founders and not to general control of government. Charities
k42 75k42 Colleges
and Universities k1 81k1 A
college, founded by private benefactors, is not constituted a public corporation,
controllable by the government, by receiving a charter from the government, though
the funds may have been generally derived from the bounty of the government. Charities
k43 75k43 Corporations
k393 101k393 Where
visitorial power is vested in trustees of charity, they are not beyond reach of
the law, but as managers of revenues of corporation, they are subject to general
superintending power of court of chancery, not as possessor of a visitorial power,
but as possessing a general jurisdiction to redress grievances and suppress fraud
in case of abuse of trust. Charities
k43 75k43 Corporations
k393 101k393 Trusts
k166(2) 390k166(2) Where
a corporation is a mere trustee of a charity, a court of equity, although it cannot
appoint or remove a corporator, will in case of gross fraud or abuse of trust
take away the trust from the corporation and vest it in other hands. Charities
k43 75k43 Colleges
and Universities k5 81k5 The
trustees of college for which corporate charter had been obtained were amenable,
as managers of property and revenues of corporation, to jurisdiction of judicial
tribunals of state, but as visitors, their discretion was limited only by charter
and was liable to no supervision or control, unless it was fraudulently misapplied. Charities
k44 75k44 The
founder of eleemosynary corporation and his heirs are of common right the legal
visitors, unless founder has appointed another person to be visitor, and in case
of assignment of visitorial power, the assignee thereof possesses it is exclusion
of the founder's heirs. Charities
k44 75k44 An
eleemosynary corporation is subject to controlling authority of its legal visitor
who, unless restrained by terms of charter, may amend and repeal its statutes,
remove its officers, correct abuses, and generally superintend management of the
trusts. Charities
k44 75k44 Colleges
and Universities k5 81k5 Where
founder of college obtained corporate charter therefor from British crown and
assigned the government and control of college to the trustees in their corporate
character, the visitorial power rightfully devolved on the trustees. Charities
k44 75k44 Where
trustees or governors of charity are incorporated to manage the charity, the visitorial
power is deemed to belong to them in their corporate character. Charities
k44 75k44 Property
k2 315k2 The
visitorial power attaching to all eleemosynary corporations is an hereditament
founded in property, valuable in intendment of law and includes the legal right
of patronage. Charities
k44 75k44 A
visitorial power attaches to all eleemosynary corporations to visit, inquire into,
and correct all irregularities and abuses therein, and to compel the original
purposes of the charity to be faithfully fulfilled. Colleges
and Universities k3 81k3 Constitutional
Law k125 92k125 That
the first trustees of corporation created for educational purposes were named
by the British crown did not prevent contract, to which donors to the educational
enterprise, the trustees, and the crown were original parties, from being within
constitutional provision prohibiting states from passing laws impairing contractual
obligations. U.S.C.A.Const. art. 1, § 10. Constitutional
Law k45 92k45 Constitutional
Law k113 92k113 Under
constitutional provision prohibiting any state from passing any laws impairing
obligation of contracts, Supreme Court has duty of protecting from even legislative
violation those contracts which constitution has placed beyond legislative control.
U.S.C.A.Const. art. 1, § 10. Constitutional
Law k48(3) 92k48(3) The
Supreme Court in a doubtful case will not pronounce a legislative act to be contrary
to constitution. Constitutional
Law k113 92k113 Constitutional
Law k145 92k145 The
constitutional provision prohibiting states from passing laws impairing contractual
obligations does not embrace contracts other than those which respect property
or some object of value, and confer rights which may be asserted in a court of
justice. U.S.C.A.Const. art. 1, § 10. Constitutional
Law k113 92k113 It
was not intended by constitutional provision prohibiting states from passing laws
impairing contractual obligations to create any new obligations or give any new
efficacy to nude pacts, but it was intended to preserve all obligatory force of
contracts which they had by the general principles of law. U.S.C.A.Const. art.
1, § 10. Constitutional
Law k113 92k113 Constitutional
Law k117 92k117 Under
constitutional provision prohibiting states from passing laws impairing obligation
of contracts, it was not intended to restrain states in regulation of their civil
institutions adopted for internal government. U.S.C.A.Const. art. 1, § 10. Constitutional
Law k113 92k113 Constitutional
Law k145 92k145 The
constitutional provision prohibiting states from passing laws impairing contractual
obligations is not limited to grants and contracts under which parties take for
their own private benefit. U.S.C.A.Const. art. 1, § 10. Constitutional
Law k113 92k113 All
incorporeal hereditaments, whether they be immunities, dignities, offices or franchises,
are deemed valuable in law, and whenever they are subjects of a contract or grant,
they are as much within the reach of constitutional provision prohibiting states
from passing laws impairing contractual obligations as any other grant. U.S.C.A.Const.
art. 1, § 10. Constitutional
Law k113 92k113 Constitutional
Law k145 92k145 Religion,
charity and education are not of so little estimation that contracts for their
benefit must be excluded from protection of constitutional provision prohibiting
states from passing laws impairing contractual obligations. U.S.C.A.Const. art.
1, § 10. Constitutional
Law k115 92k115 Constitutional
Law k129 92k129 An
act of the legislature which takes away any powers or franchises vested by charter
in a private corporation or in corporate officers, or which restrains or controls
the legitimate exercise of them, or transfers them to other persons without consent
of corporation violates obligations of charter. Constitutional
Law k115 92k115 Constitutional
Law k125 92k125 That
New Hampshire statute amending charter of Dartmouth College did not take power
of governing college from trustees thereof directly, but effected that result
through the agency of new trustees and overseers was immaterial, as respects whether
statute violated a contractual obligation. Constitutional
Law k120 92k120 Constitutional
Law k145 92k145 A
grant is a "contract" within constitutional provision prohibiting states from
passing laws impairing contractual obligations. U.S.C.A.Const. art. 1, § 10. Constitutional
Law k125 92k125 Constitutional
Law k129 92k129 The
charter granted by the British crown to the trustees of Dartmouth college, in
New Hampshire, incorporated 12 persons as trustees, and granted to them and their
successors the usual corporate privileges and powers, and declared that the trustees
should forever thereafter consist of 12, and no more. Held, that a statute of
New Hampshire increasing the number of trustees to 21, and giving the appointment
of the additional members to the executive of the state, being passed without
the previous or subsequent assent of the trustees, was unconstitutional and void. Constitutional
Law k125 92k125 Corporations
k9 101k9 The
charter of a corporation created by the state is a contract, and is in all particulars
inviolable, unless in the charter itself, or in some general or special law to
which it was taken subject, there is a power reserved to the legislature to alter
or amend. Constitutional
Law k125 92k125 Constitutional
Law k128 92k128 Where
franchises granted by charter creating college were vested in trustees thereof
in their corporate character, and lands and other property subsequently acquired
were held by trustees in the same manner, the trustees were vested with a sufficient
beneficial interest as to bring charter within purview of constitutional provision
prohibiting states from passing laws impairing contractual obligations. U.S.C.A.Const.
art. 1, § 10. Constitutional
Law k125 92k125 Corporations
k9 101k9 The
charter granted by the British crown to the trustees of Dartmouth College, in
New Hampshire, in the year 1769, is a contract within the meaning of a clause
of the constitution of the United States, which declares that no state shall make
any law impairing the obligation of contracts. Constitutional
Law k125 92k125 Corporations
k393 101k393 Corporations
k394 101k394 (Formerly
101k394.1) The
validity and justice of laws of a civil corporation are examinable by court having
jurisdiction over it, and such corporation may be controlled and its constitution
altered and amended by government in such manner as public interest may require,
and such interference impairs no contract. Constitutional
Law k125 92k125 Corporations
k9 101k9 The
creation of a corporation for educational purposes by charter was such a grant
as constituted a "contract" within constitutional provision prohibiting states
from passing laws impairing contractual obligations. U.S.C.A.Const. art. 1, §
10. Constitutional
Law k125 92k125 Corporations
k9 101k9 That
corporation created by charter granted by the crown was not then in existence
did not prevent the charter from being construed as a contract within constitutional
provision prohibiting states from passing laws impairing contractual obligations.
U.S.C.A.Const. art. 1, § 10. Constitutional
Law k125 92k125 Constitutional
Law k145 92k145 The
application to the crown for a charter to incorporate a religious and literary
institution for which large contributions had been made, the granting of the charter
and the conveyance of property on the faith of the charter constituted a "contract",
as respects whether that contract was within constitutional provision prohibiting
states from passing laws impairing contractual obligations. U.S.C.A.Const. art.
1, § 10. Constitutional
Law k125 92k125 Corporations
k9 101k9 That
original founders of college, which had obtained charter from crown, had no further
interest in property contributed by them, that students were fluctuating and without
vested interest and that trustees of college had no beneficial interest to be
protected, did not prevent contract, to which the donors, trustees and the crown
were original parties, from being within constitutional provision prohibiting
states from passing laws impairing contractual obligations. U.S.C.A.Const. art.
1, § 10. Constitutional
Law k129 92k129 Corporations
k3 101k3 That
a corporation is established for the purpose of education generally, does not
per se make it a public corporation liable to the control of the legislature. Constitutional
Law k134 92k134 Urban
Railroads k1 396Ak1 (Formerly
364k18 Street Railroads) City
ordinances made in pursuance of law, and granting to a corporation the right to
build and operate street-railway lines in the city, after acceptance by the corporation
and the expenditure of large sums of money on the faith thereof, constitute a
contract protected by U.S.C.A.Const. art. 1, § 10, forbidding states to make any
law impairing the obligation of contracts. Constitutional
Law k140(1) 92k140(1) Officers
and Public Employees k1 283k1 Except
so far as the constitution may protect them from interference, offices are neither
grants, nor contracts, nor obligations which cannot be changed or impaired. The
term, duties, and compensation thereof are subject to the legislative will. The
office may be abolished, or the duties and compensation incident thereto may be
taken away from the incumbent, and given to another. Constitutional
Law k145 92k145 Contracts
k1 95k1 Contracts
k6 95k6 A
contract is either "executory" or "executed"; by an "executory contract" a party
binds himself to do or not to do a particular thing, and an "executed contract"
is one in which the object of the contract is performed. Constitutional
Law k145 92k145 Contracts
k1 95k1 A
"contract" is a transaction between two or more persons in which each party comes
under an obligation to the other, and each reciprocally acquires a right to whatever
is promised by the other. Constitutional
Law k145 92k145 Contracts
k6 95k6 A
"contract executed" is one in which the object of the contract is performed, and
differs in nothing from a grant. Contracts
k1 95k1 An
"executory contract" is one in which a party binds himself to do or not to do
a particular thing. Implied
and Constructive Contracts k1 205Hk1 (Formerly
95k4) A
grant in its own nature amounts to an extinguishment of the right of the grantor
and implies a contract not to reassert that right. Contracts
k7 95k7 A
grant is a contract. Contracts
k47 95k47 Mere
executory contracts cannot be enforced at law unless there be a valuable consideration
to sustain them. Contracts
k51 95k51 Contracts
k52 95k52 Contracts
k71(1) 95k71(1) It
is not necessary that consideration for a contract should be a benefit to the
grantor, but it is sufficient if it imports damage or loss or forbearance of benefits
or any act done or to be done on the part of the grantee. Contracts
k249 95k249 Corporations
k9 101k9 When
a contract has once passed bona fide into grant, neither the king nor any private
person who may be the grantor can recall the grant of the property, although the
conveyance may have been purely voluntary. Contracts
k275 95k275 A
contract executed, as well as one that is executory, contains obligations binding
on the parties. Corporations
k1.1(1) 101k1.1(1) A
corporation is an artificial being, invisible, intangible, and existing only in
contemplation of law. Corporations
k2 101k2 Franchises
k2 183k2 A
"corporation" is a franchise for a number of persons to be incorporated and exist
as a body politic, with a power to maintain perpetual succession and to do corporate
acts, and each individual of such a corporation is said to have a franchise or
freedom. Corporations
k3 101k3 Corporations
are sole or aggregate. An aggregate corporation, at common law, is a collection
of individuals united into one collective body, under a special name, and possessing
certain immunities, etc., which do not belong to the natural persons composing
it. Corporations
k3 101k3 Corporations
k186 101k186 Corporations
k189(1) 101k189(1) Corporations
k189(7.5) 101k189(7.5) (Formerly
101k189(71/2)) Corporations
k499 101k499 An
"aggregate corporation" is an artificial person existing in contemplation of law
and endowed with powers and franchises which are considered as subsisting in corporation
itself, and hence such a corporation may sue and be sued by its own members and
may contract with them in same manner as with a stranger. Corporations
k8 101k8 A
charter may be granted upon an executory as well as on an executed consideration,
and when it is granted to persons who have not made application therefor, there
is an implied contract, upon acceptance of grantees, that they will perform duties
and exercise authority conferred by charter. Corporations
k31 101k31 Franchises
k2 183k2 A
gift by the crown of incorporeal hereditaments, such as corporate franchises,
when executed, is a "grant". Corporations
k35 101k35 Franchises
k2 183k2 When
a charter is granted, and the corporation is to be brought into existence by some
future acts of the corporators, the franchises or property which the charter grants
to the body remain in abeyance until such acts are done; and, when the corporation
is brought into life, the franchises instantaneously attach. Corporations
k36 101k36 Corporations
k180 101k180 Corporations
k499 101k499 An
aggregate corporation at common law possesses capacity of perpetual succession,
of acting by the collected vote or will of its component members and of suing
and being sued in all things touching its corporate rights and duties. Corporations
k370(1) 101k370(1) A
corporation has no power except what is given by its incorporating act, either
expressly or as incidental to its existence. Corporations
k372 101k372 Franchises
k2 183k2 A
grant of the king, at the suit of the grantee, is to be construed most beneficially
for the king and most strictly against the grantee. Courts
k89 106k89 Although
a particular case may not in itself be of sufficient magnitude to induce a rule
of law, it must be governed by the rule when established, unless some plain and
strong reason for excluding it can be given. Municipal
Corporations k2 268k2 "Public
corporations" are generally esteemed such as exist for public political purposes,
such as towns, cities, parishes and counties, but strictly speaking they are such
only as are founded by government for public purposes, where whole interest belongs
to the government. States
k1 360k1 By
the revolution against British rule, the duties as well as the powers of government
devolved upon the people of New Hampshire, including the power of parliament as
well as that of the executive department. Gifts
k41 191k41 A
gift completely executed is irrevocable and property conveyed by it becomes as
against the donor, the absolute property of the donee, and no subsequent change
of donor's intention can change rights of donee. War
and National Emergency k33 402k33 All
contracts and rights respecting property remained unchanged by the revolution
by which freedom from the British crown was obtained. War
and National Emergency k33 402k33 The
division of an empire works no forfeiture of previously vested rights.
ERROR to the Superior Court of the State of New Hampshire. This was an action
of trover, brought in the state court, in which the plaintiffs in error declared
for *519 two books of records, purporting to contain the records of all
the doings and proceedings of the trustees of Dartmouth College, from the establishment
of the corporation until the 7th day of October 1816; the original charter or
letters-patent, constituting the college; the common seal; and four volumes or
books of account, purporting to contain the charges and accounts in favor of the
college. The defendant pleaded the general issue, and at the trial, the following
special verdict was found: The
said jurors, upon their oath, say, that his Majesty George III., king of Great
Britain, &c., issued his letters-patent, under the public seal of the province,
now state, of New Hampshire, bearing the 13th day of December, in the 10th year
of his reign, and in the year of our Lord 1769, in the words following: George
the Third, by the grace of God, of Great Britain, France and Ireland, King, Defender
of the Faith, and so forth, To all to whom these presents shall come, greeting: Whereas,
it hath been represented to our trusty and well-beloved John Wentworth, Esq.,
governor and commander-in-chief, in and over our province of New Hampshire, in
New England, in America, that the Reverend Eleazar Wheelock, of Lebanon, in the
colony of Connecticut, in New England, aforesaid, now doctor in divinity, did,
on or about the year of our Lord 1754, *520 at his own expense, on his
own estate and plantation, set on foot an Indian charity school, and for several
years, through the assistance of well-disposed persons in America, clothed, maintained
and educated a number of the children of the Indian natives, with a view to their
carrying the Gospel, in their own language, and spreading the knowledge of the
great Redeemer, among their savage tribes, and hath actually employed a number
of them as missionaries and school-masters in the wilderness, for that purpose:
and by the blessing of God upon the endeavors of said Wheelock, the design became
reputable among the Indians, insomuch that a large number desired the education
of their children in said school, and were also disposed to receive missionaries
and school-masters, in the wilderness, more than could be supported by the charitable
contributions in these American colonies. Whereupon, the said Eleazar Wheelock
thought it expedient, that endeavors should be used to raise contributions from
well-disposed persons in England, for the carrying on and extending said undertaking;
and for that purpose the said Eleazar Wheelock requested the Rev. Nathaniel Whitaker,
now doctor in divinity to go over to England for that purpose, and sent over with
him the Rev. Samson Occom, an Indian minister, who had been educated by the said
Wheelock. And to enable the said Whitaker to the more successful performance of
said work, on which he was sent, said Wheelock gave him a full power of attorney,
by which said Whitaker solicited those worthy and generous contributors to the
charity, viz., *521 The Right Honorable William, Earl of Dartmouth, the
Honorable Sir Sidney Stafford Smythe, Knight, one of the barons of his Majesty's
court of exchequer, John Thornton, of Clapham, in the county of Surrey, Esquire,
Samuel Roffey, of Lincoln's Inn Fields, in the county of Middlesex, Esquire, Charles
Hardy, of the parish of Saint Mary-le-bonne, in said county, Esquire, Daniel West,
of Christ's church, Spitalfields, in the county aforesaid, Esquire, Samuel Savage,
of the same place, gentleman, Josiah Roberts, of the parish of St. Edmund the
King, Lombard Street, London, gentleman, and Robert Keen, of the parish of Saint
Botolph, Aldgate, London, gentleman, to receive the several sums of money, which
should be contributed, and to be trustees for the contributors to such charity,
which they cheerfully agreed to. Whereupon, the said Whitaker did, by virtue of
said power of attorney, constitute and appoint the said Earl of Dartmouth, Sir
Sidney Stafford Smythe, John Thornton, Samuel Roffey, Charles Hardy and Daniel
West, Esquires, and Samuel Savage, Josiah Roberts and Robert Keen, gentlemen,
to be trustees of the money which had then been contributed, and which should,
by his means, be contributed for said purpose; which trust they have accepted,
as by their engrossed declaration of the same, under their hands and seals, well
executed, fully appears, and the same has also been ratified, by a deed of trust,
well executed by the said Wheelock. And
the said Wheelock further represents, that he has, by power of attorney, for many
weighty reasons, *522 given full power to the said trustees, to fix upon
and determine the place for said school, most subservient to the great end in
view; and to enable them understandingly, to give the preference, the said Wheelock
has laid before the said trustees, the several offers which have been generously
made in the several governments in America, to encourage and invite the settlement
of said school among them, for their own private emolument, and the increase of
learning in their respective places, as well as for the furtherance of the general
design in view. And whereas, a large number of the proprietors of lands in the
western part of this our province of New Hampshire, animated and excited thereto,
by the generous example of his excellency, their governor, and by the liberal
contributions of many noblemen and gentlemen in England, and especially by the
consideration, that such a situation would be as convenient as any for carrying
on the great design among the Indians; and also, considering, that without the
least impediment to the said design, the same school may be enlarged and improved
to promote learning among the English, and be a means to supply a great number
of churches and congregations, which are likely soon to be formed in that new
country, with a learned and orthodox ministry; they, the said proprietors, have
promised large tracts of land, for the uses aforesaid, provided the school shall
be settled in the western part of our said province. And they, the said right
honorable, honorable and worthy trustees, before mentioned, having maturely considered
the reasons and arguments, in favor of the several places *523 proposed,
have given the preference to the western part of our said province, lying on Connecticut
river, as a situation most convenient for said school. And
the said Wheelock has further represented a necessity of a legal incorporation,
in order to the safety and well-being of said seminary, and its being capable
of the tenure and disposal of lands and bequests for the use of the same. And
the said Wheelock has also represented, that for many weighty reasons, it will
be expedient, at least, in the infancy of said institution, or till it can be
accommodated in that new country, and he and his friends be able to remove and
settle, by and round about it, that the gentlemen, whom he has already nominated
in his last will (which he has transmitted to the aforesaid gentlemen of the trust
in England), to be trustees in America, should be of the corporation now proposed.
And also, as there are already large collections for said school, in the hands
of the aforesaid gentlemen of the trust, in England, and all reasons to believe,
from their singular wisdom, piety and zeal to promote the Redeemer's cause (which
has already procured for them the utmost confidence of the kingdom), we may expect
they will appoint successors in time to come, who will be men of the same spirit,
whereby great good may and will accrue many ways to the institution, and much
be done, by their example and influence, to encourage and facilitate the whole
design in view; for which reason, said Wheelock desires, that the trustees aforesaid
may be vested with all that power therein, which can consist with their distance
from the same. *524
KNOW YE, THEREFORE, that We, considering the premises, and being willing to encourage
the laudable and charitable design of spreading Christian knowledge among the
savages of our American wilderness, and also that the best means of education
be established in our province of New Hampshire, for the benefit of said province,
do, of our special grace, certain knowledge and mere motion, by and with the advice
of our counsel for said province, by these presents, will, ordain, grant and constitute,
that there be a college erected in our said province of New Hampshire, by the
name of Dartmouth College, for the education and instruction of youth of the Indian
tribes in this land, in reading, writing and all parts of learning, which shall
appear necessary and expedient, for civilizing and christianizing children of
pagans, as well as in all liberal arts and sciences, and also of English youth
and any others. And the trustees of said college may and shall be one body corporate
and politic, in deed, action and name, and shall be called, named and distinguished
by the name of the Trustees of Dartmouth College. And
further, we have willed, given, granted, constituted and ordained, and by this
our present charter, of our special grace, certain knowledge and mere motion,
with the advice aforesaid, do, for us, our heirs and successors for ever, will,
give, grant, constitute and ordain, that there shall be in the said Dartmouth
College, from henceforth and for ever, a body politic, consisting of trustees
of said Dartmouth College. And for the more full and perfect erection of said
corporation and body politic, consisting of trustees of Dartmouth College, we,
of our special grace, certain *525 knowledge and mere motion, do, by these
presents, for us, our heirs and successors, make, ordain, constitute and appoint
our trusty and well-beloved John Wentworth, Esq., governor of our said province,
and the governor of our said province of New Hampshire for the time being, and
our trusty and well-beloved Theodore Atkinson, Esq., now president of our council
of our said province, George Jaffrey and Daniel Peirce, Esq'rs, both or our said
council, and Peter Gilman, Esq., now speaker of our house of representatives in
said province, and William Pitkin, Esq., one of the assistants of our colony of
Connecticut, and our said trusty and well-beloved Eleazar Wheelock, of Lebanon,
doctor in divinity, Benjamin Pomroy, of Hebroe, James Lockwood, of Weathersfield,
Timothy Pitkin and John Smalley, of Farmington, and William Patten, of Hartford,
all of our said colony of Connecticut, ministers of the gospel (the whole number
of said trustees consisting, and hereafter for ever to consist, of twelve and
no more) to be trustees of said Dartmouth College, in this our province of New
Hampshire. And
we do further, of our special grace, certain knowledge and mere motion, for us,
our heirs and successors, will, give, grant and appoint, that the said trustees
and their successors shall for ever hereafter be, in deed, act and name, a body
corporate and politic, and that they, the said body corporate and politic, shall
be known and distinguished, in all deeds, grants, bargains, sales, writings, evidences
or otherwise howsoever, and in all courts for ever hereafter, plea and be impleaded
by the name of the Trustees of Dartmouth College; and that the said corporation,
*526 by the name aforesaid, shall be able, and in law capable, for the use
of said Dartmouth College, to have, get, acquire, purchase, receive, hold, possess
and enjoy, tenements, hereditaments, jurisdictions and franchises, for themselves
and their successors, in fee-simple, or otherwise howsoever, and to purchase,
receive or build any house or houses, or any other buildings, as they shall think
needful and convenient, for the use of said Dartmouth College, and in such town
in the western part of our said province of New Hampshire, as shall, by said trustees,
or the major part of them, he agreed on; their said agreement to be evidenced
by an instrument in writing, under their hands, ascertaining the same: And also
to receive and dispose of any lands, goods, chattels and other things, of what
nature soever, for the use aforesaid: And also to have, accept and receive any
rents, profits, annuities, gifts, legacies, donations or bequests of any kind
whatsoever, for the use aforesaid; so, nevertheless, that the yearly value of
the premises do not exceed the sum of 6000£. sterling; and therewith, or
otherwise, to support and pay, as the said trustees, or the major part of such
of them as are regularly convened for the purpose, shall agree, the president,
tutors and other officers and ministers of said Dartmouth College; and also to
pay all such missionaries and school-masters as shall be authorized, appointed
and employed by them, for civilizing and christianizing, and instructing the Indian
natives of this land, their several allowances; and also their respective annual
salaries or allowances, and all such necessary and *527 contingent charges,
as from time to time shall arise and accrue, relating to the said Dartmouth College:
And also, to bargain, sell, let or assign, lands, tenements or hereditaments,
goods or chattels, and all other things whatsoever, by the name aforesaid in as
full and ample a manner, to all intents and purposes, as a natural person, or
other body politic or corporate, is able to do, by the laws or our realm of Great
Britain, or of said province of New Hampshire. And
further, of our special grace, certain knowledge and mere motion, to the intent
that our said corporation and body politic may answer the end of their erection
and constitution, and may have perpetual succession and continuance for ever,
we do, for us, our heirs and successors, will, give and grant unto the Trustees
of Dartmouth College, and to their successors for ever, that there shall be, once
a year, and every year, a meeting of said trustees, held at said Dartmouth College,
at such time as by said trustees, or the major part of them, at any legal meeting
of said trustees, shall be agreed on; the first meeting to be called by the said
Eleazar Wheelock, as soon as conveniently may be, within one year next after the
enrolment of these our letters-patent, at such time and place as he shall judge
proper. And the said trustees, or the major part of any seven or more of them,
shall then determine on the time for holding the annual meeting aforesaid, which
may be altered as they shall hereafter find most convenient. And we further order
and direct, that the said Eleazar Wheelock shall notify the time for holding said
first meeting, to be called as aforesaid, by sending a letter *528 to each
of said trustees, and causing an advertisement thereof to be printed in the New
Hampshire Gazette, and in some public newspaper printed in the colony of Connecticut.
But in case of the death or incapacity of the said Wheelock, then such meeting
to be notified in manner aforesaid, by the governor or commander-in-chief of our
said province for the time being. And we do also, for us, our heirs and successors,
hereby will, give and grant unto the said Trustees of Dartmouth College, aforesaid,
and to their successors for ever, that when any seven or more of the said trustees,
or their successors, are convened and met together, for the service of said Dartmouth
College, at any time or times, such seven or more shall be capable to act as fully
and amply, to all intents and purposes, as if all the trustees of said college
were personally present--and all affairs and actions whatsoever, under the care
of said trustees, shall be determined by the majority or greater number of those
seven or more trustees so convened and met together. And
we do further will, ordain and direct, that the president, trustees, professors,
tutors and all such officers as shall be appointed for the public instruction
and government of said college, shall, before they undertake the execution of
their offices or trusts, or within one year after, take the oaths and subscribe
the declaration provided by an act of parliament made in the first year of King
George the First, entitled 'an act for the further security of his majesty's person
and government, and the succession of the crown in the heirs of the late Princess
Sophia, being *529 Protestants, and for the extinguishing the hopes of
the pretended Prince of Wales, and his open and secret abettors;' that is to say,
the president, before the governor of our said province for the time being, or
by one by him empowered to that service, or by the president of our said council,
and the trustees, professors, tutors and other officers, before the president
of said college for the time being, who is hereby empowered to administer the
same; an entry of all which shall be made in the records of said college. And
we do, for us, our heirs, and successors, hereby will, give and grant full power
and authority to the president hereafter by us named, and to his successors, or,
in case of his failure, to any three or more of the said trustees, to appoint
other occasional meetings, from time to time, of the said seven trustees, or any
greater number of them, to transact any matter or thing necessary to be done before
the next annual meeting, and to order notice to the said seven, or any greater
number of them, of the times and places of meeting for the service aforesaid,
by a letter under his or their hands, of the same, one month before said meeting:
provided always, that no standing rule or order be made or altered, for the regulation
of said college, nor any president or professor be chosen or displaced, nor any
other matter or thing transacted or done, which shall continue in force after
the then next annual meeting of the said trustees, as aforesaid. And
further, we do, by these presents, for us, our heirs and successors, create, make,
constitute, nominate and appoint our trusty and well-beloved Eleazar Wheelock,
doctor in divinity, the founder of said *530 college, to be president of
said Dartmouth College, and to have the immediate care of the education and government
of such students as shall be admitted into said Dartmouth College for instruction
and education; and do will, give and grant to him, in said office, full power,
authority and right, to nominate, appoint, constitute and ordain, by his last
will, such suitable and meet person or persons as he shall choose to succeed him
in the presidency of said Dartmouth College; and the person so appointed, by his
last will, to continue in office, vested with all the powers, privileges, jurisdiction
and authority of a president of said Dartmouth College; that is to say, so long
and until such appointment by said last will shall be disapproved by the trustees
of said Dartmouth College. And
we do also, for us, our heirs and successors, will, give and grant to the said
trustees of said Dartmouth College, and to their successors for ever, or any seven
or more of them, convened as aforesaid, that in the case of the ceasing or failure
of a president, by any means whatsoever, that the said trustees do elect, nominate
and appoint such qualified person as they, or the major part of any seven or more
of them, convened for that purpose as above directed, shall think fit, to be president
of said Dartmouth College, and to have the care of the education and government
of the students as aforesaid; and in case of the ceasing of a president as aforesaid,
the senior professor or tutor, being one of the trustees, shall exercise the office
of a president, until the trustees shall make choice of and appoint, a president
as aforesaid; *531 and such professor or tutor, or any three or more of
the trustees, shall immediately appoint a meeting of the body of the trustees
for the purpose aforesaid. And also we do will, give and grant to the said trustees,
convened as aforesaid, that they elect, nominate and appoint so many tutors and
professors to assist the president in the education and government of the students
belonging thereto, as they the said trustees shall, from time to time, think needful
and serviceable to the interests of said Dartmouth College. And also, that the
said trustees or their successors, or the major part of any seven or more of them,
convened for that purpose as above directed, shall, at any time, displace and
discharge from the service of said Dartmouth College, any or all such officers,
and elect others in their room and stead, as before directed. And also, that the
said trustees, or their successors, or the major part of any seven of them which
shall convene for that purpose, as above directed, do, from time to time, as occasion
shall require, elect, constitute and appoint a treasurer, a clerk, an usher and
a steward for the said Dartmouth College, and appoint to them, and each of them,
their respective businesses and trust; and displace and discharge from the service
of said college, such treasurer, clerk, usher or steward, and to elect others
in their room and stead; which officers so elected, as before directed, we do
for us, our heirs and successors, by these presents, constitute and establish
in their respective offices, and do give to each and every of them full power
and authority to exercise the same in said Dartmouth College, according to the
*532 directions, and during the pleasure of said trustees, as fully and freely
as any like officers in any of our universities, colleges or seminaries of learning
in our realm of Great Britain, lawfully may or ought to do. And also, that the
said trustees and their successors, or the major part of any seven or more of
them, which shall convene for that purpose, as is above directed, as often as
one or more of said trustees shall die, or by removal or otherwise shall, according
to their judgment, become unfit or incapable to serve the interests of said college,
do, as soon as may be after the death, removal or such unfitness or incapacity
of such trustee or trustees, elect and appoint such trustee or trustees as shall
supply the place of him or them so dying, or becoming incapable to serve the interests
of said college; and every trustee so elected and appointed shall, by virtue of
these presents, and such election and appointment, be vested with all the powers
and privileges which any of the other trustees of said college are hereby vested
with. And we do further will, ordain and direct, that from and after the expiration
of two years from the enrolment of these presents, such vacancy or vacancies as
may or shall happen, by death or otherwise, in the aforesaid number of trustees,
shall be filled up by election as aforesaid, so that when such vacancies shall
be filled up unto the complete number of twelve trustees, eight of the aforesaid
whole number of the body of trustees shall be resident, and respectable freeholders
of our said province of New Hampshire, and seven of said whole number shall be
laymen. *533
And we do further, of our special grace, certain knowledge and mere motion, will,
give and grant unto the said trustees of Dartmouth College, that they, and their
successors, or the major part of any seven of them, which shall convene for that
purpose, as is above directed, may make, and they are hereby fully empowered,
from time to time, fully and lawfully to make and establish such ordinances, orders
and laws, as may tend to the good and wholesome government of the said college,
and all the students and the several officers and ministers thereof, and to the
public benefit of the same, not repugnant to the laws and statutes of our realm
of Great Britain, or of this our province of New Hampshire, and not excluding
any person of any religious denomination whatsoever, from free and equal liberty
and advantage of education, or from any of the liberties and privileges or immunities
of the said college, on account of his or their speculative sentiments in religion,
and of his or their being of a religious profession different from the said trustees
of the said Dartmouth College. And such ordinances, orders and laws, which shall
as aforesaid be made, we do, for us, our heirs and successors, by these presents,
ratify, allow of, and confirm, as good and effectual to oblige and bind all the
students, and the several officers and ministers of the said college. And we do
hereby authorize and empower the said trustees of Dartmouth College, and the president,
tutors and professors by them elected and appointed as aforesaid, to put such
ordinances, orders and laws in execution, to all proper intents and purposes. *534
And we do further, of our special grace, certain knowledge and mere motion, will,
give, and grant unto the said trustees of said Dartmouth College, for the encouragement
of learning, and animating the students of said college to diligence and industry,
and a laudable progress in literature, that they, and their successors, or the
major part of any seven or more of them, convened for that purpose, as above directed,
do, by the president of said college, for the time being, or any other deputed
by them, give and grant any such degree or degrees to any of the students of the
said college, or any others by them thought worthy thereof, as are usually granted
in either of the universities, or any other college in our realm of Great Britain;
and that they sign and seal diplomas or certificates of such graduations, to be
kept by the graduates as perpetual memorials and testimonials thereof. And
we do further, of our special grace, certain knowledge and mere motion, by these
presents, for us, our heirs and successors, give and grant unto the trustees of
said Dartmouth College, and to their successors, that they and their successors
shall have a common seal, under which they may pass all diplomas or certificates
of degrees, and all other affairs and business of, and concerning the said college;
which shall be engraven in such a form and with such an inscription as shall be
devised by the said trustees, for the time being, or by the major part of any
seven or more of them, convened for the service of the said college, as is above
directed. *535
And we do further, for us, our heirs and successors, give and grant unto the said
trustees of the said Dartmouth College, and their successors, or to the major
part of any seven or more of them, convened for the service of the said college,
full power and authority, from time to time, to nominate and appoint all other
officers and ministers, which they shall think convenient and necessary for the
service of the said college, not herein particularly named or mentioned; which
officers and ministers we do hereby empower to execute their offices and trusts,
as fully and freely as any of the officers and ministers in our universities or
colleges in our realm of Great Britain lawfully may or ought to do. And
further, that the generous contributors to the support of this design of spreading
the knowledge of the only true God and Saviour among the American savages, may,
from time to time, be satisfied that their liberalities are faithfully disposed
of, in the best manner, for that purpose, and that others may, in future time,
be encouraged in the exercise of the like liberality, for promoting the same pious
design, it shall be the duty of the president of said Dartmouth College, and of
his successors, annually, or as often as he shall be thereunto desired or required,
to transmit to the right honorable, honorable, and worthy gentlemen of the trust,
in England, before mentioned, a faithful account of the improvements and disbursements
of the several sums he shall receive from the donations and bequests made in England,
through the hands of said trustees, and also advise them of the general plans
laid, and prospects exhibited, as well as a faithful *536 account of all
remarkable occurrences, in order, if they shall think expedient, that they may
be published. And this to continue so long as they shall perpetuate their board
of trust, and there shall be any of the Indian natives remaining to be proper
objects of that charity. And lastly, our express will and pleasure is, and we
do, by these presents, for us, our heirs and successors, give and grant unto the
said trustees of Dartmouth College, and to their successors for ever, that these
our letters-patent, on the enrolment thereof in the secretary's office of our
province of New Hampshire aforesaid, shall be good and effectual in the law, to
all intents and purposes, against us, our heirs and successors, without any other
license, grant or confirmation from us, our heirs and successors, hereafter by
the said trustees to be had and obtained, notwithstanding the not writing or misrecital,
not naming or misnaming the aforesaid offices, franchises, privileges, immunities
or other the premises, or any of them, and notwithstanding a writ of ad quod
damnum hath not issued forth to inquire of the premises, or any of them, before
the ensealing hereof, any statute, act, ordinance, or provision, or any other
matter or thing, to the contrary notwithstanding. To have and to hold, all and
singular the privileges, advantages, liberties, immunities, and all other the
premises herein and hereby granted, or which are meant, mentioned or intended
to be herein and hereby given and granted, unto them, the said trustees of Dartmouth
College, and to their successors for ever. In testimony whereof, we have caused
these our letters to be made patent, and the public seal of *537 our said
province of New Hampshire to be hereunto affixed. Witness our trusty and well-beloved
John Wentworth, Esquire, governor and commander-in-chief in and over our said
province, &c., this thirteenth day of December, in the tenth year of our reign,
and in the year of our Lord 1769. N.B.
The words 'and such professor or tutor, or any three or more of the trustees,
shall immediately appoint a meeting of the body of the trustees, for the purpose
aforesaid,' between the first and second lines, also the words 'or more,' between
the 27th and 28th lines, also the words 'or more,' between the 28th and 29th lines,
and also the words 'to all intents and purposes,' between the 37th and 38th lines
of this sheet, were respectively interlined, before signing and sealing. And
the said jurors, upon their oath, further say, that afterwards, upon the 18th
day of the same December, the said letters-patent were duly enrolled and recorded
in the secretary's office of said province, now state, of New Hampshire; and afterwards,
and within one year from the issuing of the same letters-patent, all the persons
named as trustees in the same accepted the said letters-patent, and assented thereunto,
and the corporation therein and thereby created and erected was duly organized,
and has, until the passing of the act of the legislature of the state of New Hampshire,
of the 27th of June, A. D. 1816, and ever since (unless prevented by said act
and the *538 doings under the same) continued to be a corporation. And
the said jurors, upon their oath, further say, that immediately after its erection
and organization as aforesaid, the said corporation had, took, acquired and received,
by gift, donation, devise and otherwise, lands, goods, chattels and moneys of
great value; and from time to time since, have had, taken, received and acquired,
in manner aforesaid, and otherwise, lands, goods, chattels and moneys of great
value; and on the same 27th day of June, A. D. 1816, the said corporation, erected
and organized as aforesaid, had, held and enjoyed, and ever since have had, held
and enjoyed, divers lands, tenements, hereditaments, goods, chattels and moneys,
acquired in manner aforesaid, the yearly income of the same, not exceeding the
sum of $26,666, for the use of said Dartmouth College, as specified in said letters-patent.
And the said jurors, upon their oath, further say, that part of the said lands,
so acquired and holden by the said trustees as aforesaid, were granted by (and
are situate in) the state of Vermont, A. D. 1785, and are of great value; and
other part of said lands, so acquired and holden as aforesaid, were granted by
(and are situate in) the state of New Hampshire, in the years 1789 and 1807, and
are of great value. And the said jurors, upon their oath, further say, that the
said trustees of Dartmonth College, so constituted as aforesaid, on the same 27th
day of June, A. D. 1816, were possessed of the goods and chattels in the declaration
of the said trustees specified, *539 and at the place therein mentioned,
as of their own proper goods and chattels, and continued so possessed until, and
at the time of the demand and refusal of the same, as hereinafter mentioned, unless
divested thereof, and their title thereto defeated and rendered invalid, by the
provisions of the act of the state of New Hampshire, made and passed on the same
27th day of June, A. D. 1816, and the doings under the same, as hereinafter mentioned
and recited. And
the said jurors, upon their oath, further say, that on the 27th day of June, A.
D. 1816, the legislature of said state of New Hampshire made and passed a certain
act, entitled, 'an act to amend the charter, and enlarge and improve the corporation
of Dartmouth College,' in the words following: An
act to amend the charter, and enlarge and improve the corporation of Dartmouth
College. Whereas,
knowledge and learning generally diffused through a community, are essential to
the preservation of a free government, and extending the opportunities and advantages
of education is highly conducive to promote this end, and by the constitution
it is made the duty of the legislators and magistrates, to cherish the interests
of literature, and the sciences, and all seminaries established for their advancement;
and as the college of the state may, in the opinion of the legislature, be rendered
more extensively useful: therefore---- §
1. Be it enacted, &c., that the *540 corporation, heretofore called
and known by the name of the Trustees of Dartmouth College, shall ever hereafter
be called and known by the name of the Trustees of Dartmouth University; and the
whole number of said trustees shall be twenty-one, a majority of whom shall form
a quorum for the transaction of business; and they and their successors
in that capacity, as hereby constituted, shall respectively for ever have, hold,
use, exercise and enjoy all the powers, authorities, rights, property, liberties,
privileges and immunities which have hitherto been possessed, enjoyed and used
by the Trustees of Dartmouth College, except so far as the same may be varied
or limited by the provisions of this act. And they shall have power to determine
the times and places of their meetings, and manner of notifying the same; to organize
colleges in the university; to establish an institute, and elect fellows and members
thereof: to appoint such officers as they may deem proper, and determine their
duties and compensation, and also to displace them; to delegate the power of supplying
vacancies in any of the offices of the university, for any term of time not extending
beyond their next meeting: to pass ordinances for the government of the students,
with reasonable penalties, not inconsistent with the constitution and laws of
this state; to prescribe the course of education, and confer degrees; and to arrange,
invest and employ the funds of the university. §
2. And be it further enacted, that there shall be a board of overseers, who shall
have perpetual succession, and whose number shall be twenty-five, *541
fifteen of whom shall constitute a quorum for the transaction of business.
The president of the senate, and the speaker of the house of representatives of
New Hampshire, the governor and lieutenant-governor of Vermont, for the time being,
shall be members of said board, ex officio. The board of overseers shall
have power to determine the times and places of their meetings, and manner of
notifying the same; to inspect and confirm, or disapprove and negative, such votes
and proceedings of the board of trustees as shall relate to the appointment and
removal of president, professors and other permanent officers of the university,
and determine their salaries; to the establishment of colleges and professorships,
and the erection of new college buildings: provided always, that the said negative
shall be expressed within sixty days from the time of said overseers being furnished
with copies of such acts: provided also, that all votes and proceedings of the
board of trustees shall be valid and effectual, to all intents and purposes, until
such negative of the board of overseers be expressed, according to the provisions
of this act. §
3. Be it further enacted, that there shall be a treasurer of said corporation,
who shall be duly sworn, and who, before he enters upon the duties of his office,
shall give bonds, with sureties, to the satisfaction of the corporation, for the
faithful performance thereof; and also a secretary to each of the boards of trustees
and overseers, to be elected by the said boards, respectively, who shall keep
a just and true record of the proceedings of the board for *542 which he
was chosen. And it shall furthermore be the duty of the secretary of the board
of trustees to furnish, as soon as may be, to the said board of overseers, copies
of the records of such votes and proceedings, as by the provisions of this act
are made subject to their revision and control. §
4. Be it further enacted, that the president of Dartmouth University, and his
successors in office, shall have the superintendence of the government and instruction
of the students, and may preside at all meetings of the trustees, and do and execute
all the duties devolving by usage on the president of a university. He shall render
annually to the governor of this state an account of the number of students, and
of the state of the funds of the university; and likewise copies of all important
votes and proceedings of the corporation and overseers, which shall be made out
by the secretaries of the respective boards. §
5. Be it further enacted, that the president and professors of the university
shall be nominated by the trustees, and approved by the overseers: and shall be
liable to be suspended or removed from office in manner as before provided. And
each of the two boards of trustees and overseers shall have power to suspend and
remove any member of their respective boards. §
6. Be it further enacted, that the governor and counsel are hereby authorized
to fill all vacancies in the board of overseers, whether the same be original
vacancies, or are occasioned by the death, resignation or removal of any member.
And *543 the governor and counsel in like manner shall, by appointments,
as soon as may be, complete the present board of trustees to the number of twenty-one,
as provided for by this act, and shall have power also to fill all vacancies that
may occur previous to, or during the first meeting of the said board of trustees.
But the president of said university for the time being, shall, nevertheless,
be a member of said board of trustees, ex officio. And the governor and
council shall have power to inspect the doings and proceedings of the corporation,
and of all the officers of the university, whenever they deem it expedient; and
they are hereby required to make such inspection, and report the same to the legislature
of this state, as often as once in every five years. And the governor is hereby
authorized and requested to summon the first meeting of the said trustees and
overseers, to be held at Hanover, on the 26th day of August next. §
7. Be it further enacted, that the president and professors of the university,
before entering upon the duties of their offices, shall take the oath to support
the constitution of the United States and of this state; certificates of which
shall be in the office of the secretary of this state, within sixty days from
their entering on their offices respectively. §
8. Be it further enacted, that perfect freedom of religious opinion shall be enjoyed
by all the officers and students of the university; and no officer or student
shall be deprived of any honors, privileges or benefits of the institution, on
account of his religious creed or belief. The theological colleges which *544
may be established in the university shall be founded on the same principles of
religious freedom; and any man, or body of men, shall have a right to endow colleges
or professorships of any sect of the Protestant Christian religion: and the trustees
shall be held and obliged to appoint professors of learning and piety of such
sects, according to the will of the donors. Approved,
June 27th, 1816. And
the said jurors, upon their oath, further say, that, at the annual meeting of
the trustees of Dartmouth College, constituted agreeably to the letters-patent
aforesaid, and in no other way or manner, holden at said college, on the 28th
day of August, A. D. 1816, the said trustees voted and resolved, and caused the
said vote and resolve to be entered on their records, that they do not accept
the provisions of the said act of the legislature of New Hampshire of the 27th
of June 1816, above recited, but do, by the said vote and resolve, expressly refuse
to accept or act under the same. And the said jurors, upon their oath, further
say, that the said trustees of Dartmouth College have never accepted, assented
to, or acted under, the said act of the 27th of June, A. D. 1816, or any act passed
in addition thereto, or in amendment thereof, but have continued to act, and still
claim the right of acting, under the said letters-patent. And
the said jurors, upon their oath, further say, that on the 7th day of October,
A. D. 1816, and before the commencement of this suit, the said trustees of Dartmouth
College demanded of the said *545 William H. Woodward the property, goods
and chattels in the said declaration specified, and requested the said William
H. Woodward, who then had the same in his hands and possession, to deliver the
same to them, which the said William H. Woodward then and there refused to do,
and has ever since neglected and refused to do, but converted the same to his
own use, if the said trustees of Dartmouth College could, after the passing of
the said act of the 27th day of June, lawfully demand the same, and if the said
William H. Woodward was not, by law, authorized to retain the same in his possession
after such demand. And
the said jurors, upon their oath, further say, that on the 18th day of December,
A. D. 1816, the legislature of the said state of New Hampshire made and passed
a certain other act, entitled, 'an act in addition to, and in amendment of, an
act, entitled, an act to amend the charter, and enlarge and improve the corporation
of Dartmouth College,' in the words following: An
act in addition to, and in amendment of, an act, entitled, 'an act to amend the
charter, and enlarge and improve the Corporation of Dartmouth College.' Whereas,
the meetings of the trustees and overseers of Dartmouth University, which were
summoned agreeably to the provisions of said act, failed of being duly holden,
in consequence of a quorum of neither said trustees nor overseers attending
at the *546 time and place appointed, whereby the proceedings of said corporation
have hitherto been, and still are delayed: §
1. Be it enacted, &c., that the governor be, and he is hereby authorized and
requested to summon a meeting of the trustees of Dartmouth University, at such
time and place as he may deem expedient. And the said trustees, at such meeting,
may do and transact any matter or thing, within the limits of their jurisdiction
and power, as such trustees, to every intent and purpose, and as fully and completely
as if the same were transacted at any annual or other meeting. And the governer,
with advice of council, is authorized to fill all vacancies that have happened,
or may happen in the board of said trustees, previous to their next annual meeting.
And the governor is hereby authorized to summon a meeting of the overseers of
said university, at such time and place as he may consider proper. And provided,
a less number than a quorum of said board of overseers convene at the time
and place appointed for such meeting of their board, they shall have power to
adjourn, from time to time, until a quorum shall have convened. §
2. And be it further enacted, that so much of the act, to which this is an addition,
as makes necessary any particular number of trustees or overseers of said university,
to constitute a quorum for the transaction of business, be, and the same
hereby is repealed; and that hereafter, nine of said trustees, convened agreeably
to the provisions of this act, or *547 to those of that to which this is
an addition, shall be a quorum for transacting business; and that in the
board of trustees, six votes at least shall be necessary for the passage of any
act or resolution. And provided also, that any smaller number than nine of said
trustees, convened at the time and place appointed for any meeting of their board,
according to the provisions of this act, or that to which this is an addition,
shall have power to adjourn from time to time, until a quorum shall have
convened. §
3. And be it further enacted, that each member of said board of trustees, already
appointed or chosen, or hereafter to be appointed or chosen, shall, before entering
on the duties of his office, make and subscribe an oath for the faithful discharge
of the duties aforesaid; which oath shall be returned to, and filed in the office
of the secretary of state, previous to the next regular meeting of said board,
after said member enters on the duties of his office, as aforesaid. Approved,
December 18th, 1816. And
the said jurors, upon their oath, further say, that on the 26th day of December,
A. D. 1816, the legislature of said state of New Hampshire made and passed a certain
other act, entitled, 'an act in addition to an act, entitled, an act in addition
to, and in amendment of an act, entitled, an act to amend the charter and enlarge
and improve the corporation of Dartmouth College,' in the words following: *548
An act in addition to an act, entitled, 'an act in addition to, and in amendment
of, an act, entitled, an act to amend the charter and enlarge and improve the
corporation of Dartmouth College.' Be
it enacted &c., that if any person or persons shall assume the office of president,
trustee, professor, secretary, treasurer, librarian or other officer of Dartmouth
University; or by any name, or under any pretext, shall, directly or indirectly,
take upon himself or themselves the discharge of any of the duties of either of
those offices, except it be pursuant to, and in conformity with, the provisions
of an act, entitled, 'an act to amend the charter and enlarge and improve the
corporation of Dartmouth College,' or, of the 'act, in addition to and in amendment
of an act, entitled, an act to amend the charter and enlarge and improve the corporation
of Dartmouth College,' or shall in any way, directly or indirectly, wilfully impede
or hinder any such officer or officers already existing, or hereafter to be appointed
agreeably to the provisions of the acts aforesaid, in the free and entire discharge
of the duties of their respective offices, conformably to the provisions of said
acts, the person or persons so offending shall, for each offence, forfeit and
pay the sum of five hundred dollars, to be recovered by any person who shall sue
therefor, one-half thereof to the use of the prosecutor, and the other half to
the use of said university. And
be it further enacted, that the person or persons who sustained the offices of
secretary and treasurer *549 of the trustees of Dartmouth College, next
before the passage of the act, entitled, 'an act to amend the charter and enlarge
and improve the corporation of Dartmouth College,' shall continue to hold and
discharge the duties of those offices, as secretary and treasurer of the trustees
of Dartmouth University, until another person or persons be appointed, in his
or their stead, by the trustees of said university. And that the treasurer of
said university, so existing, shall, in his office, have the care, management,
direction and superintendence of the property of said corporation, whether real
or personal, until a quorum of said trustees shall have convened in a regular
meeting. Approved,
December 26th, 1816. And
the said jurors, upon their oath, further say, that the said William H. Woodward,
before the said 27th day of June, had been duly appointed by the said trustees
of Dartmouth College, secretary and treasurer of the said corporation, and was
duly qualified to exercise, and did exercise the said offices, and perform the
duties of the same; and as such secretary and treasurer, rightfully had, while
he so continued secretary and treasurer as aforesaid, the custody and keeping
of the several goods, chattels and property, in said declaration specified. And
the said jurors, upon their oath, further say, that the said William H. Woodward
was removed by said trustees of Dartmouth College (if the said trustees could,
by law, do the said acts) from said office of secretary, on the 27th day of August,
A. D. 1816, and from said office of treasurer, on the 27th day of *550
September, then next following, of which said removals he, the said William H.
Woodward, had due notice on each of said days last mentioned. And
the said jurors, upon their oath, further say, that the corporation called the
Trustees of Dartmouth University, was duly organized on the 4th day of February,
A. D. 1817, pursuant to, and under, the said recited acts of the 27th day of June,
and of the 18th and 26th days of December, A. D. 1816; and the said William H.
Woodward was, on the said 4th day of February, A. D. 1817, duly appointed by the
said Trustees of Dartmouth University, secretary and treasurer of the said Trustees
of Dartmouth University, and then and there accepted both said offices. And
the said jurors, upon their oath, further say, that this suit was commenced on
the 8th day of February, A. D. 1817. But whether upon the whole matter aforesaid,
by the jurors aforesaid, in manner and form aforesaid found, the said acts of
the 27th of June, 18th and 26th of December, A. D. 1816, are valid in law, and
binding on the said trustees of Dartmouth College, without acceptance thereof
and assent thereunto by them, so as to render the plaintiffs incapable of maintaining
this action, or whether the same acts are repugnant to the constitution of the
United States, and so void, the said jurors are wholly ignorant, and pray the
advice of the court upon the premises. And if, upon the said matter, it shall
seem to the court here, that the said acts last mentioned are valid in law, and
binding on said trustees of Dartmouth College, *551 without acceptance
thereof, and assent thereto, by them, so as to render the plaintiffs incapable
of maintaining this action, and are not repugnant to the constitution of the United
States, then the said jurors, upon their oath, say, that the said William H. Woodward
is not guilty of the premises above laid to his charge, by the declaration aforesaid,
as the said William H. Woodward hath above in pleading alleged. But if, upon the
whole matter aforesaid, it shall seem to the court here, that the said acts last
mentioned are not valid in law, and are not binding on the said trustees of Dartmouth
College, without acceptance thereof, and assent thereto, by them, so as to render
them incapable of maintaining this action, and that the said acts are repugnant
to the constitution of the United States and void, then the said jurors, upon
their oath, say that the said William H. Woodward is guilty of the premises above
laid to his charge, by the declaration aforesaid, and in that case, they assess
the damages of them, the said trustees of Dartmouth College, by occasion thereof,
at $20,000. Judgment
having been afterwards rendered upon the said special verdict, by the superior
court of the state of New Hampshire, being the highest court of law or equity
of said state, for the plaintiff below, the cause was brought before this court
by writ of error. March
10th and 11th, 1818. Webster,
for the plaintiffs in error.--The general question is, whether the acts of the
27th of June, and of the 18th and 26th of December 1816, are *552 valid
and binding on the rights of the plaintiffs, without their acceptance or assent. The
substance of the facts recited in the preamble to the charter, is, that Dr. Wheelock
had founded a charity, on funds owned and procured by himself; that he was at
that time, the sole dispenser and sole administrator, as well as the legal owner
of these funds; that he had made his will devising this property in trust, to
continue the existence and uses of the school, and appointed trustees; that, in
this state of things, he had been invited to fix his school permanently in New
Hampshire, and to extend the design of it to the education of the youth of that
province; that before he removed his school, or accepted this invitation, which
his friends in England had advised him to accept, he applied for a charter, to
be granted, not to whomsoever the king or government of the province should please,
but to such persons as he named and appointed, viz., the persons whom he had already
appointed to be the future trustees of his charity, by his will. The charter,
or letters-patent, then proceed to create such a corporation, and to appoint twelve
persons to constitute it, by the name of the 'Trustees of Dartmouth College;'
to have perpetual existence, as such corporation, and with power to hold and dispose
of lands and goods for the use of the college, with all the ordinary powers of
corporations. They are, in their discretion, to apply the funds and property of
the college to the support of the president, tutors, ministers and other officers
of the college, and such missionaries and school-masters as they may see fit to
employ among *553 the Indians. There are to be twelve trustees for ever,
and no more; and they are to have the right of filling vacancies occurring in
their own body. The Rev. Mr. Wheelock is declared to be the founder of the college,
and is, by the charter, appointed first president, with power to appoint a successor,
by his last will. All proper powers of government, superintendence and visitation,
are vested in the trustees. They are to appoint and remove all officers, at their
discretion; to fix their salaries, and assign their duties; and to make all ordinances,
orders and laws, for the government of the students. And to the end that the persons
who had acted as depositaries of the contributions in England, and who had also
been contributors themselves, might be satisfied of the good use of their contributions,
the president was, annually, or when required, to transmit to them an account
of the progress of the institution, and the disbursements of its funds, so long
as they should continue to act in that trust. These letters-patent are to be good
and effectual in law, against the king, his heirs and successors for ever, without
further grant or confirmation; and the trustees are to hold all and singular these
privileges, advantages, liberties and immunities, to them and to their successors
for ever. No funds are given to the college by this charter. A corporate existence
and capacity are given to the trustees, with the privileges and immunities which
have been mentioned, to enable the founder and his associates the better to manage
the funds which they themselves had contributed, and such others as they might
afterwards obtain. *554
After the institution, thus created and constituted, had existed, uninterruptedly
and usefully, nearly fifty years, the legislature of New Hampshire passed the
acts in question. The first act makes the twelve trustees under the charter, and
nine other individuals to be appointed by the governor and council, a corporation,
by a new name; and to this new corporation transfers all the property, rights,
powers, liberties and privileges of the old corporation; with further power to
establish new colleges and an institute, and to apply all or any part of
the funds to these purposes, subject to the power and control of a board of twenty-five
overseers, to be appointed by the governor and council. The second act makes further
provisions for executing the objects of the first, and the last act authorizes
the defendant, the treasurer of the plaintiffs, to retain and hold their property,
against their will. If
these acts are valid, the old corporation is abolished, and a new one created.
The first act does, in fact, if it can have effect, create a new corporation,
and transfer to it all the property and franchises of the old. The two corporations
are not the same, in anything which essentially belongs to the existence of a
corporation. They have different names, and different powers, rights and duties;
their organization is wholly different; the powers of the corporation are not
vested in the same or similar hands. In one, the trustees are twelve, and no more;
in the other, they are twenty-one. In one, the power is a single board; in the
other, it is divided between two boards. Although the act professes to *555
include the old trustees in the new corporation, yet that was without their assent,
and against their remonstrance; and no person can be compelled to be a member
of such a corporation against his will. It was neither expected nor intended,
that they should be members of the new corporation. The act itself treats the
old corporation as at an end, and going on the ground, that all its functions
have ceased, it provides for the first meeting and organization of the new corporation.
It expressly provides also, that the new corporation shall have and hold all the
property of the old; a provision which would be quite unnecessary, upon any other
ground, than that the old corporation was dissolved. But if it could be contended,
that the effect of these acts was not entirely to abolish the old corporation,
yet it is manifest, that they impair and invade the rights, property and powers
of the trustees, under the charter, as a corporation, and the legal rights, privileges
and immunities which belong to them, as individual members of the corporation.
The twelve trustees were the sole legal owners of all the property acquired under
the charter; by the acts, others are admitted, against their will, to be joint
owners. The twelve individuals, who are trustees, were possessed of all the franchises
and immunities conferred by the charter; by the acts, nine other trustees, and
twenty-five overseers, are admitted, against their will, to divide these franchises
and immunities with them. If, either as a corporation, or as individuals, they
have any legal rights, this forcible intrusion of others violates those rights,
as manifestly as an entire and complete ouster *556 and dispossession.
These acts alter the whole constitution of the corporation; they affect the rights
of the whole body, as a corporation, and the rights of the individuals who compose
it; they revoke corporate powers and franchises; they alienate and transfer the
property of the college to others. By the charter, the trustees had a right to
fill vacancies in their own number; this is now taken away. They were to consist
of twelve, and by express provision, of no more; this is altered. They and their
successors, appointed by themselves, were for ever to hold the property; the legislature
has found successors for them, before their seats are vacant. The powers and privileges,
which the twelve were to exercise exclusively, are now to be exercised by others.
By one of the acts, they are subjected to heavy penalties, if they exercise their
offices, or any of those powers and privileges granted them by charter, and which
they had exercised for fifty years; they are to be punished for not accepting
the new grant, and taking its benefits. This, it must be confessed, is rather
a summary mode of settling a question of constitutional right. Not only are new
trustees forced into the corporation, but new trusts and uses are created. The
college is turned into a university; power is given to create new colleges, and
to authorize any diversion of the funds, whic |
